SHAILESH J JOGAVI,MUMBAI vs. DCIT CC 5 (3), MUMBAI

Per Kuldip Singh, Judicial Member: For the sake of brevity aforesaid appeals bearing common

question of law and facts are being disposed of by way of

composite order.

2 ITA No.6558/M/2019 & ors Shri Shailesh J. Jogani & ors 2. The appellant Shri Shailesh J. Jogani (hereinafter referred to

as ‘the assessee’) by filing the present appeals, sought to set aside

the impugned order dated 12.08.2019 passed by Commissioner of

Income Tax (Appeals)-53, Mumbai [hereinafter referred to as the

CIT(A)] qua the assessment year 2010-11 on identically worded

grounds inter alia that :-

“1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in treating unsecured loans of Rs.1,50,75,000 and Rs.1,50,32,268/- in ITA No.6558/M/2019 & ITA No.6559/M/2019 respectively as not genuine without considering the evidences produced by the appellant to prove genuineness of lenders.

The appellant craves leave to amend or alter any grounds or add a new ground which may be necessary.”

controversy at hand are : on the basis of search and seizure

operation conducted on 05.05.2014 by the investigation wing in

case of assessee, assessment proceedings under section 153A were

initiated by way of issuance of notice under section 143(2) along

3 ITA No.6558/M/2019 & ors Shri Shailesh J. Jogani & ors with notice under section 142(1) read with section 129 of the

Income Tax Act (for short ‘the Act’) on even date 10.08.2016 in

both the cases. During the course of search at the residential

premises of Shri Shailesh Jogani it was noticed that the assessee

had taken unsecured loans through various suspicious concerns qua

which details were called from the assessee. Disagreeing with the

details filed by the assessee and on the basis of statement of Shri

Shailesh Jogani recorded under section 132(4) of the Act during

search proceedings the Assessing Officer (AO) proceeded to hold

that the assessee has taken bogus unsecured loan entries, amounting

to Rs.1,50,75,000/- from Kriya Impex Pvt. Ltd. and Karnawat

Impex Pvt. Ltd. being run and managed by Rajendra Jain Group,

Shri Sanjay Chaudhary and Dharmichand Jain and thereby made

addition of Rs.150,32,268/- and Rs.1,50,75,000/- in ITA

No.6559/M/2019 in M/s. S. Jogani Exports Pvt. Ltd. and in ITA

No.6558/M/2019 in Shri Shailesh Jogani respectively under section

68 of the Act. The AO also made disallowance of interest on the

unsecured loan of Rs.40,335/- and Rs.8,97,065/- on aforesaid bogus

loans qua the year under assessment and thereby framed the

assessment at Rs.4,84,01,630/- & Rs.8,97,065/- in case of

M/s. S. Jogani Exports Pvt. Ltd. & M/s. S. Jogani Exports Pvt. Ltd.

4 ITA No.6558/M/2019 & ors Shri Shailesh J. Jogani & ors respectively under section 153A read with section 143(3) of the

Act.

filing the appeal who has upheld the addition made by the AO.

Feeling aggrieved with the impugned orders passed by the

Ld. CIT(A) the assessee has come up before the Tribunal by way of

filing the present appeal.

parties to the appeal, perused the orders passed by the Ld. Lower

Revenue Authorities and documents available on record in the light

of the facts and circumstances of the case and law applicable

thereto.

for the assessee that the entire addition has been made on the basis

of statements of Shri Rajendra Jain, Shri Sanjay Chaudhary and

Dharmichand Jain as well as statement of assessee recorded under

section 132(4) of the Act, however, the assessee had retracted his

statement during assessment proceedings which has not been

considered by the AO and brought on record the letter supported

with an affidavit/letter dated 17.11.2016 addressed to the AO

containing the factum of retraction of his earlier statements

5 ITA No.6558/M/2019 & ors Shri Shailesh J. Jogani & ors recorded during search proceedings under section 132(4) of the

Act.

CIT(A), particularly para 4.2 it has also come on record that the

addition has been sustained by the Ld. CIT(A) on the basis of

statement of the assessee recorded during the search proceedings

under section 132(4) of the Act as well as by considering the

statement of Shri Rajendra Jain and Shri Dharmchand Jain. Even

the assessment order shows that the entire addition has been made

on the basis of statement of assessee as well as statement of Shri

Rajendra Jain and Shri Dharmchand Jain but “retracted statement”

of the assessee has not been taken into consideration. This factual

position has not been controverted by the Ld. D.R. for the Revenue.

since retraction statement made by the assessee during the

search/assessment proceedings has not been taken into

consideration, to meet with ends of justice, the entire issue requires

to be considered and decided afresh by the AO to decide the

controversy once for all. Moreover, co-ordinate Bench of the

Tribunal in assessee’s own connected case based upon the same

search and seizure operation, identical issue has already been

6 ITA No.6558/M/2019 & ors Shri Shailesh J. Jogani & ors remitted back to the AO vide order dated 21.03.2022 passed in ITA

No.7354/M/2016 for A.Y. 2008-09.

aside without expressing any opinion on merit and file is remitted

back to the AO to decide afresh after taking into consideration the

retraction statement made by the assessee after providing

opportunity of being heard to the assessee. Both the appeals of the

assessee are allowed for statistical purposes.

Order pronounced in the open court on 22.03.2022.

Sd/- Sd/- (GAGAN GOYAL) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER

Mumbai, Dated: 22.03.2022.

* Kishore, Sr. P.S.

Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench

//True Copy//

By Order

Dy/Asstt. Registrar, ITAT, Mumbai.